138.Further supplementary memorandum from
the Lord Filkin (MIB 1225)
JOINT COMMITTEE ON THE DRAFT MENTAL INCAPACITY
BILL: ACCESS TO INFORMATION & JURISDICTIONAL MATTERS
Thank you for the letter of 28 October asking
for clarification on access to information issues related to the
draft Mental Incapacity Bill. I am replying to this request here
and I also include further information on jurisdictional matters
that were requested at the oral evidence session on 22 October.
We are well aware that matters relating to access
to information, confidentiality and data protection are both important
and difficult for those who lack capacity. These issues do not
feature explicitly in the current draft of the Bill because they
will largely be dealt with by consequential amendments and by
guidance. Consequential amendments will be included in the Bill
Guidance issued by the Information Commissioner
currently advises that where there is an Enduring Power of Attorney
or authority from the Court of Protection, it is possible to make
a subject access request, under the provisions of the Data Protection
Act 1998, on behalf of someone who lacks mental capacity. Whilst
the EPA relates to the management of a person's affairs, the Information
Commissioner's guidance is, we believe, an acknowledgement that
the management of affairs may require access to clinical records,
but it would be wrong to assume that this will always encompass
decisions about treatment and care. There is also a Data Protection
(Subject Access Modification) (Health) Order 2000 SI 2000/413
and a Data Protection (Subject Access Modification) (Social Work)
Order 2000 SI 2000/415 that make reference to court appointed
representatives being able to make a subject access request on
behalf of someone who is incapable, provided that certain information
is not disclosed to the representatives.
As the Mental Incapacity Bill will introduce
new wider functions of Lasting Powers of Attorney and deputies
we intend to consult the Information Commissioner about the possibility
of amending his guidance accordingly. The intention is to allow
LPAs and deputies to make subject access requests where appropriate.
Consideration is being given to the extent to which financial
LPAs should be able to access health and welfare information and
vice versa. We will also revisit the 2000 Orders and consider
whether these will require amendment in the light of the Bill.
We also propose to include in the Bill a similar
power as provided by the Adults with Incapacity (Scotland) Act
2000 in relation to the health records of deceased individuals.
This will enable those acting on behalf of persons without capacity
who have an interest in the estate of a deceased person to access
health records under the existing provisions in the Access to
Health Records Act 1990.
As now, under the Bill, registers of LPAs and
deputies held by the Public Guardian will be searchable by the
public so that it is possible to find out who has authority in
a particular case.
Access to information under the General Authority
is more difficult because there is not one clear person with authority
to act. Here we are dealing with the same situation as that which
exists under the current common law. At present information is
shared on a "need to know" basis and guidance for NHS
staff, "Confidentiality: NHS Code of Practice", has
now been published following a public consultation. The Code has
been endorsed by the British Medical Association, General Medical
Council and the Information Commissioner and can be found at www.doh.gov.uk/confiden.
Health and social care organisations operating under best practice
have drawn up information sharing protocols. For example, the
"No Secrets" document requires Adult Protection Committees
to draw up common agreements relating to confidentiality.
Where information is held under the common law
duty of confidentiality, it must only be disclosed for the purposes
that it was collected for unless there is explicit consent from
the subject, a statutory basis for disclosure or a robust public
interest justification for the disclosure. Regarding this latter
justification, it is accepted that where there are concerns about
abuse and vulnerable people are at risk, then absolute guarantees
of confidentiality cannot be given.
Our developing work on the Bill is leading us
to examine further whether these current arrangements on information
sharing would be adequate under the Bill, perhaps supplemented
by clear guidance, or whether the Bill justifies a fresh look
at these policies. We will continue to investigate this.
On 22 October Mrs Humble raised the question
of what would happen under the Bill to an incapacitated person
on vacation in Scotland who suffers an acute episode of a terminal
illness and is hospitalised in Scotland. We undertook to provide
more information on this point.
Here our intention is to provide rules in the
Bill to match those in the Adults with Incapacity (Scotland) Act
2000 and to be consistent with the Hague Convention on the International
Protection of Adults 2000. These provisions on Private International
Law are technical and will included in the Bill for introduction.
In relation to the Lasting Power of Attorney,
the general position would be that an attorney appointed in England
would be able to act on the incapacitated adult's behalf in Scotland.
In general the law that applies would be that of the incapacitated
adult's habitual residence at the time when the LPA was made.
English law would be applied to matters such as whether the LPA
is valid. However, the manner in which the attorney can make his
decisions is likely to be governed by Scottish law.
In relation to the application of the advance
directive, the Scottish administrative and judicial authorities
generally would apply Scottish law. The authorities are empowered
to apply the law of England and Wales if it is in the adult's
best interests and if the circumstances demonstrate a substantial
connection to England and Wales. The Scottish authorities would
take an overall view of the situation. It may be more likely,
where it is an emergency situation, that Scotland would take a
pragmatic approach and apply its own law. That would mean the
doctor in charge doing what is reasonable in the circumstances
although the incapacitated adult's representative could apply
to court for an order if they wished to do so.
I hope that this response adequately addresses
your concerns. If you should require any further clarification
please do not hesitate to ask. I am copying this letter to Rosie